dismissed H-1B Case: Gem Imports And Sales

U.S. Department of Homeland Security 
20 Mass. Ave. N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 04 087 52971 Office: VERMONT SERVICE CENTER Date: 
~1~2@$ 
IN RE: Petitioner: 
Beneficiary 
PETITION: Petition for a Nonimmigrant Worker Pursuant to Section lOl(a)(lS)(H)(i)(b) of the 
Immigration and Nationality Act, 8 U.S.C. 3 1 10 l(a)( lS)(H)(i)(b) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
This is the decision of the Administrative Appeals Office in your case. All documents have been returned 
to the office that originally decided your case. Any further inquiry must be made to that office. 
Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 04 087 52971 
Page 2 
DISCUSSION: The director denied the nonimmigrant visa petition and the matter is now before the 
Administrative Appeals Office (AAO) on appeal. The appeal will be dismissed. The petition will be 
denied. 
The petitioner is engaged in gem imports and sales. It seeks to employ the beneficiary as a marketing 
manager. The petitioner, therefore, endeavors to classify the beneficiary as a nonimmigrant worker in a 
specialty occupation pursuant to section lOl(a)(lS)(H)(i)(b) of the Immigration and Nationality Act (the 
Act), 8 U.S.C. 5 I lOl(a)(lS)(H)(i)(b). 
The director denied the petition on the basis that the petitioner had failed to establish that the proposed 
position qualifies for classification as a specialty occupation under the criteria set forth at 8 C.F.R. 
5 2 14.2(h)(4)(iii)(A). 
Section 214(i)(l) of the Immigration and Nationality Act (the Act), 8 U.S.C. 3 1184(i)(l), defines the term 
"specialty occupation" as an occupation that requires: 
(A) theoretical and practical application of a body of highly specialized knowledge, 
and 
(B) attainment of a bachelor's or higher degree in the specific specialty (or its 
equivalent) as a minimum for entry into the occupation in the United States. 
The term "specialty occupation" is further defined at 8 C.F.R. 3 214.2(h)(4)(ii) as: 
[A]n occupation which requires theoretical and practical application of a body of highly 
specialized knowledge in fields of human endeavor including, but not limited to, 
architecture, engineering, mathematics, physical sciences, social sciences, medicine and 
health, education, business specialties, accounting, law, theology, and the arts, and which 
requires the attainment of a bachelor's degree or higher in a specific specialty, or its 
equivalent, as a minimum for entry into the occupation in the United States. 
Pursuant to 8 C.F.R. 5 214.2(h)(4)(iii)(A), to qualify as a specialty occupation, the position must meet one of 
the following criteria: 
(I) A baccalaureate or higher degree or its equivalent is normally the minimum 
requirement for entry into the particular position; 
(2) The degree requirement is common to the industry in parallel positions among 
similar organizations or, in the alternative, an employer may show that its particular 
position is so complex or unique that it can be performed only by an individual with 
a degree; 
(3) The employer normally requires a degree or its equivalent for the position; or 
(4) The nature of the specific duties is so specialized and complex that knowledge 
required to perform the duties is usually associated with the attainment of a 
baccalaureate or higher degree. 
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Citizenship and Immigration Services (CIS) interprets the term "degree" in the criteria at 8 C.F.R. 
5 214.2(h)(4)(iii)(A) to mean not just any baccalaureate or higher degree, but one in a specific specialty 
that is directly related to the proposed position. 
The record of proceeding before the AAO contains (I) the Form 1-129 and supporting documentation; (2) the 
director's request for evidence (RFE); (3) the petitioner's RFE response and supporting documentation; 
(4) the director's denial letter; and (5) the Form I-290B and supporting documentation. The AAO reviewed 
the record in its entirety before issuing its decision. 
The petitioner's letter of support set forth the following description of the duties of the proposed position: 
[The beneficiary will] supervise and coordinate the activities of our staff and develop and 
control sales and marketing programs. He will maintain relationship[s] with existing clients 
and customers with a view towards expanding sales and dealings with those organizations 
while at the same time, creating strategies for finding new distribution points. He will 
implement and coordinate appropriate research for obtaining new customers; negotiate 
contracts and direct the proper presentation, quality[,] and reliability of our company 
personnel and goods. He will also coordinate sales and marketing strategic [sic] and if 
ultimately growth is successful, he will determine sales territories and hire and appoint 
salesmen for these areas. [The beneficiary] will be required to closely observe and evaluate 
market conditions including economic factors so that he can advise the parent company, 
Lakhi gems, as to purchases and acquisitions appropriate for the U.S. customers. He will 
advise as to pricing; quality of goods required[,] and trends and fashions in the U.S. 
The director denied the petition, finding that the petitioner had satisfied none of the four criteria set forth at 
5 2 14.2(h)(4)(iii)(A), and therefore had not established that the proposed position qualifies for classification 
as a specialty occupation. 
On appeal, the petitioner contends that the director erred in denying the petition, and that the proposed 
position is in fact a specialty occupation. Counsel contends that in denying the petition, the director acted in 
an arbitrary and capricious manner. 
In determining whether a proposed position qualifies as a specialty occupation, CIS looks beyond the title 
of the position and determines, from a review of the duties of the position and any supporting evidence, 
whether the position actually requires the theoretical and practical application of a body of highly 
specialized knowledge, and the attainment of a baccalaureate degree in a specific specialty, as the 
minimum for entry into the occupation as required by the Act. The AAO routinely consults the 
Department of Labor's Occupational Outlook Handbook (the Handbook) for its information about the 
duties and educational requirements of particular occupations. 
The Handbook's discussion of the duties of advertising, marketing, promotions, public relations, and sales 
managers states the following: 
Marketing managers develop the firm's detailed marketing strategy. With the help of 
subordinates, including product development managers and market research managers, 
they determine the demand for products and services offered by the firm and its 
competitors. In addition, they identify potential markets-for example, business firms, 
wholesalers, retailers, government, or the general public. Marketing managers develop 
EAC 04 087 52971 
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pricing strategy with an eye towards maximizing the firm's share of the market and its 
profits while ensuring that the firm's customers are satisfied. In collaboration with sales, 
product development, and other managers, they monitor trends that indicate the need for 
new products and services and oversee product development. Marketing managers work 
with advertising and promotion managers to promote the firm's products and services and 
to attract potential users. 
The Handbook states the following with regard to the educational qualifications required for marketing 
managers: 
A wide range of educational backgrounds is suitable for entry into advertising, marketing, 
promotions, public relations, and sales managerial jobs, but many employers prefer those 
with experience in related occupations plus a broad liberal arts background. A bachelor's 
degree in sociology, psychology, literature, journalism, or philosophy, among other 
subjects, is acceptable. However, requirements vary, depending upon the particular job. 
For marketing, sales, and promotions management positions, some employers prefer a 
bachelor's or master's degree in business administration with an emphasis on marketing. 
Courses in business law, economics, accounting, finance, mathematics, and statistics are 
advantageous. . . . 
Most advertising, marketing, promotions, public relations, and sales management 
positions are filled by promoting experienced staff or related professional personnel. For 
example, many managers are former sales representatives, purchasing agents, buyers, or 
product, advertising, promotions, or public relations specialists. In small firms, where the 
number of positions is limited, advancement to a management position usually comes 
slowly. In large firms, promotion may occur more quickly. 
Thus, the proposed position does not qualify for classification as a specialty occupation under 8 C.F.R. 
Q 214.2@)(4)(iii)(A)(l), which requires a showing that a baccalaureate or higher degree or its equivalent is 
normally the minimum requirement for entry into the field. The Handbook indicates that most marketing 
manager positions are filled on the basis of experience (most positions "are filled by promoting experienced 
staff or related professional personnel''). Moreover, the fact that some employers "prefer" a degree or that 
individuals possessing degrees "should have the best job opportunities" does not rise to the "normally 
required" standard imposed by the regulation. As such, marketing managers do not qualify as specialty 
occupations under the first criterion. 
Nor does the proposed position qualify as a specialty occupation under either prong of 8 C.F.R. 
214.2(h)(4)(iii)(A)(2). The first prong of this regulation requires a showing that a specific degree 
requirement is common to the industry in parallel positions among similar organizations. 
There is no evidence in the record to satisfy this prong. The letters from four companies conducting business 
in the same field as the petitioner, submitted by counsel in response to the director's request for evidence, do 
not satisfy this prong, as they do not state that a bachelor's degree is required.' Moreover, the text of these 
1 On appeal, counsel acknowledges that these letters do not state that a bachelor's degree is required: "[Tlhese other 
gem dealers are not filing H1B petitions, and were not addressing that issue. The issue in question is whether 
EAC 04 087 52971 
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four letters is identical; it appears as though the one person wrote the text and then provided it to all four 
companies as a template. As such, the evidentiary weight of these letters is diminished. 
Accordingly, the proposed position does not qualify as a specialty occupation under the first prong of 
8 C.F.R. 5 2 14.2(h)(4)(iii)(A)(2). 
The second prong of 8 C.F.R. 5 214.2(h)(4)(iii)(A)(2) requires the petitioner to prove that the duties of the 
proposed position are so complex or unique that only an individual with a degree can perform them. The 
nature of the duties of the proposed position as set forth in the petition does not support such a finding, as 
they are similar to those of marketing managers as discussed in the Handbook, which do not require a 
degree. The record contains no documentation to support a finding that the proposed position is more 
complex or unique than marketing manager positions at other, similar organizations. 
Therefore, the petitioner cannot establish that the proposed position qualifies as a specialty occupation under 
either prong of 8 C.F.R. 5 2 14.2(h)(4)(iii)(A)(2). 
The proposed position does not qualify as a specialty occupation under 8 C.F.R. 3 214.2(h)(4)(iii)(A)(3), 
which requires a showing that the petitioner normally requires a degree or its equivalent for the position. To 
determine a petitioner's ability to meet this criterion, the AAO normally reviews the petitioner's past 
employment practices, as well as the histories, including names and dates of employment, of those employees 
with degrees who previously held the position, and copies of those employees' diplomas. However, no 
evidence has been submitted to demonstrate that the proposed position qualifies under this criterion. 
In order to establish eligibility under this criterion, the petitioner must demonstrate that it normally hires 
individuals with a bachelor's degree or equivalent for the position. If the petitioner has never before filled the 
position, then it cannot qualify the position as a specialty occupation under this criterion. 
Finally, the AAO tms to the criterion at 8 C.F.R. 5 214.2(h)(4)(iii)(A)(4), which requires a 
demonstration that the nature of the specific duties is so specialized and complex that knowledge required 
to perform the duties is usually associated with the attainment of a baccalaureate or higher degree. 
To the extent that they are depicted in the record, the duties of the proposed position do not appear so 
specialized and complex as to require the highly specialized knowledge associated with a baccalaureate or 
higher degree, or its equivalent, in a specific specialty. Again, there is no information in the record to 
support a finding that the proposed position is more complex or unique than similar positions in other, 
similar organizations. Therefore, the evidence does not establish that the proposed position is a specialty 
occupation under 8 C .F.R. 3 2 14.2(h)(4)(iii)(A)(4). 
The proposed position does not qualify for classification as a specialty occupation under any of the four 
criteria set forth at 8 C.F.R. $3 214.2(h)(4)(iii)(A)(I), (21, (3), and (4), and the director was correct to 
deny the petition. 
Lastly, the AAO turns to the advisory opinion written by Dr. Jonathan Jelen, which was submitted by 
counsel on appeal. Dr. Jelen states that "[c]ompanies seeking to employ a Manager require prospective 
candidates to possess at least a Bachelor's degree in Business Administration, or a related field, from an 
accredited institution of higher learning." 
marketing managers are employed in the industry. They are." 
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Dr. Jelen's advisory opinion does not establish the proposed position as a specialty occupation. A 
petitioner must demonstrate that its proposed position requires a precise and specific course of study that 
relates directly and closely to the position in question. Since there must be a close corollary between the 
required specialized studies and the position, the requirement of a degree with a generalized title, such as 
business administration or liberal arts, without firther specification, does not establish the position as a 
specialty occupation. Matter of Michael Hertz Associates, 19 I&N Dec. 558 (Comm. 1988). 
CIS may, in its discretion, use as advisory opinions statements submitted as expert testimony. However, 
where an opinion is not in accord with other information or is in any way questionable, CIS is not 
required to accept or may give less weight to that evidence. Matter of Caron International, 19 I&N Dec. 
791 (Comm. 1988). 
The petitioner has failed to establish that the position qualifies for classification as a specialty occupation. 
Accordingly, the AAO will not disturb the director's denial of the petition. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 
8 136 1. The petitioner has not sustained that burden. 
ORDER: The appeal is dismissed. The petition is denied.